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Guardian Electronics v. Workers Compensation Appeal Board2/27/2002
Submitted: November 2, 2001
OPINION NOT REPORTED
Guardian Electronics and Westfield Companies (Employer) appeal from an order of the Workers' Compensation Appeal Board (Board) which affirmed a decision of a Workers' Compensation Judge (WCJ) denying Employer's petition to modify/suspend benefits. We affirm.
William Freshcorn (Claimant) sustained a work-related injury to his lower back on September 26, 1996 and received workers' compensation benefits pursuant to a notice of compensation payable. On September 3, 1997, Employer sent Claimant a notice of ability to return to work advising him that it had received medical evidence indicating that he was capable of performing sedentary and light- duties on a full-time basis. The notice advised Claimant that he had an obligation to look for available employment. On March 17, 1998, Employer sent Claimant a second notice of ability to return to work advising him that it had medical evidence which indicated that Claimant was capable of performing full-time light-duty work. On March 23, 1998, Employer filed a modification/suspension petition, alleging that, as of March 17, 1998, Claimant had earning power that entitled Employer to a modification of his temporary total disability benefits. Claimant filed a timely answer denying the allegation of Employer's petition.
At a hearing before a WCJ, Employer presented the deposition testimony of Lawrence Bell, M.D., a board-certified orthopedic surgeon. Dr. Bell examined Claimant on June 24, 1997. Based on his examination of Claimant and his review of Claimant's medical records, Dr. Bell opined the Claimant sustained a lumbar strain in September 1996. Dr. Bell testified that at the time of his examination, Claimant was having pain and a lot of subjective symptoms but he believed that the pain was not due to the lumbar strain. Dr. Bell testified that he believed that Claimant was underestimating his capabilities and that he was capable of performing clerical, general office work and various other occupations. According to a physical capacities form completed by Dr. Bell, Claimant was capable of performing light-duty work on a full-time basis.
Employer also presented the testimony of James W. Primm, Jr., a certified rehabilitation counselor. Primm testified that he was instructed by Employer to perform a labor market survey for a ten-day period, from January 13, 1998 to January 23, 1998. Primm testified that he identified three positions with Claimant's physical capabilities and geographical area and notified Claimant of these positions. Primm testified that Claimant applied for these positions but was not hired. Primm was then asked by Employer to conduct labor market surveys for two one-month periods, from September 3, 1997 to October 3, 1997 and from March 17, 1998 to April 17, 1998. Primm prepared a report which listed nine available positions, all within the sedentary to light-duty categories. These positions included, inter alia, telemarketer, computer bookkeeper and auto sales.
Primm testified that he back-checked the classified ads and verified with the nine employers that these positions were available on the dates indicated in his report. Primm testified that all the positions were within Claimant's physical restrictions as set forth in the return to work evaluation completed by Dr. Bell.
Claimant presented the deposition testimony of Mitchell S. Felder, M.D., a board-certified neurologist. Dr. Felder testified that Claimant began receiving trigger point injections on March 14, 1997. Dr. Felder testified that these injections are administered in the low back and are given on a weekly basis. Dr. Felder testified that Claimant continues
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